AMITAVA LALA, J. - (1.) ACCORDING to the story of the informant in the First Information Report, the petitioner did not refund the amount of Rs. 50,000/ -taken for his personal requirement on 26th June, 2002. In further, it has said that the petitioner returned Rs. 10,000/ -only but not the rest inspite of admitting the loan. As a result whereof, the informant had to file the First Information Report on 03rd September, 2005. It appears that the date is after about three years three months from the date of taking alleged loan. The First Information Report has been lodged under Section 406 of the Indian Penal Code. Section 406 I.P.C. is in respect of punishment for criminal breach of trust, whereas, Section 405 I.P.C. is giving definition of criminal breach of trust. Section 405 I.P.C. is as follows: Criminal breach of trust. -Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. Explanation 1. - A person, being an employer of an establishment whether exempted under Section 17 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount for the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation 2. -A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.”
(2.) THE offence under Section 405 I.P.C. is non -cognizable, bailable, non -compoundable and triable by Magistrate of the First Class. But since the First Information Report has been lodged under Section 406 I.P.C, the same is cognizable, non -bailable, compoundable and triable by the Magistrate of the First Class. The ratio of 1990(2) JIC 997 (SC); AIR 1992 SC 604, State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. said that the power under Article 226 of the Constitution of India will be sparingly exercised and that too in the rarest of rare cases. From the guidelines in the judgment, we found non -cognizable offence, where no investigation is permitted by the police without the order of the Magistrate as contemplated under Section 155 (2) of Cr. P.C., can be a good ground for consideration. Therefore, we cannot straight way say that by applying the ratio of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., (supra) the First Information Report will be quashed without considering other aspects of the matter. The other aspects have also been considered by the Supreme Court on numerous occasions. In 2002(1) JIC 232 (SC); 2002 SCC (Cri) 129, S.W. Palanitkar and Ors. v. State of Bihar and Anr., the Supreme Court held that without mens rea a breach of trust may not result in criminal breach of trust. Every breach of trust may not result in penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong, in respect of which the person wronged may seek his redress for damages in a civil Court, but a breach of trust with mens rea gives rise to a criminal prosecution as well.
(3.) IN (2003) 7 SCC 399, Kailash Kumar Sanwatia v. State of Bihar and Anr., the Supreme Court held that following ingredients of offence are to be treated as criminal breach of trust: (1) Entrusting any person with property, or with any dominion over property. (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so as to do in violation - (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. ;